Butt (Migration)

[2018] AATA 1961

Butt (Migration) [2018] AATA 1961 (3 May 2018)

WRITTEN STATEMENT AND DECISION

Division:Migration & Refugee Division

Review Applicant:  Mr Farhaj Kashif Butt

Visa Applicant:  Mrs Maria Afzal

AAT case number <> DIBP ref.:                 1604672 <> BCC2015/1423606

Member and place:  Nicholas McGowan, Melbourne

Visa subclass:Partner (Provisional) (Class UF) Subclass 309

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Whether compelling circumstances exist to waive 12 month rule – Continued separation of parties constitutes a compelling reason – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), r 2.03A, Schedule 2, cl 309.211(3)

Decision

1. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration with the direction that the visa applicant meets cl.309.211(3) of Schedule 2 to the Regulations.

Consideration of claims and evidence

2. On18 May 2015 the visa applicant was refused a temporary partner visa to join her Australian husband in Australia. The applicant was refused because although she and her Australia partner believed they married one another in Malaysia, although the authorities do not recognise it (this absence of recognition is not contested by the review applicant).

3. Accordingly, the applicant’s marriage is not a recognised marriage under Australia law or the Migration Act and Regulations. Accordingly, the Department considered the parties must be assessed as de facto partners under the Act. Having considered the requirements for the visa for a de facto application (s.5CB and r.2.03A(3) relevantly) the Department formed the view the parties did not meet the requirement that they had been in a de facto relationship for 12 months prior to the time of application.

4. On 3 May 2018, this Tribunal held a public hearing. The review applicant did not contest that their marriage is not recognised by the authorities in Malaysia. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The Tribunal proceeded to consider the requirements of the Act and Regulations referred to (relevantly) above. In regards to the ’12 month rule’ contained in r.2.03A, the Tribunal is mindful that the requirement may be waivered where compelling or compassionate circumstances for the grant of the visa can be established. In this regard, the Tribunal has specific regard to the interests of the Australian citizen party (the review applicant).

6. In the specific circumstances of this case, the Tribunal has been satisfied that to require the review applicant to be separated from his partner indefinitely adversely affects that citizen’s interests. Further, the Tribunal believes that it is in the Australian communities interest that the visa be granted to allow for family reunion and only be withheld where there are clear countervailing reasons. In this case, the Tribunal can see no reason why the Australia citizen should be forced to have his interests so significantly affected when it has long been recognised that uniting families is in the best interests of all Australians. As well as their separation being a circumstance that compels the Tribunal to waive 12 month rule, the Tribunal also finds that stripping the Australian citizen of any hope of integrating his wife into a shared life (in Australia) is a compassionate circumstance that justifies the grant of the visa.

7. Accordingly, the Tribunal finds that there are compelling, and in fact compassionate, circumstances as discussed above that justify the grant of the visa. Accordingly, the visa applicant meets 309.211(2).

8. Throughout the consideration of this case the Tribunal had regard to the relationship considerations and requirements as required under the Act and Regulations. The Tribunal found the review applicant’s oral evidence to be consistent and logical during its public hearing held in Melbourne on 3 May 2018. The additional documentary evidence provided to this Tribunal by the review applicant (which is in addition to that provided by the review applicant to the department previously) will be shared with the Department to form part of the body of evidence which supports the applicant’s partner visa application.

9. Given all of the above, the Tribunal remits the visa applicant’s partner application to the Minister to consider the remaining criteria for the grant of the visa.

Statement made on 03 May 2018 at 10:36am